Free Expression 101: Know Your Rights! Will Creeley, Vice President of Legal and Public Advocacy Foundation for Individual Rights in Education Orange Coast College March 17, 2015 What is FIRE? ¡ non-partisan, non-profit 501(c)(3) educational foundation founded in 1999 ¡ dedicated to defending and sustaining core civil liberties at our nation’s colleges and universities ¡ freedom of speech, freedom of the press, freedom of conscience, legal equality, and due process ¡ won 245 public cases affecting more than 2.1 million students Who am I? ¡ Will Creeley, Vice President of Legal & Public Advocacy ¡ 2006 graduate of the New York University School of Law; member of the New York State Bar and the First Amendment Lawyers Association ¡ coauthored amicus curiae briefs submitted to a number of courts, including the Supreme Court of the United States and the United States Courts of Appeals for the Third, Eighth, Ninth and Eleventh Circuits ¡ appeared on national television and radio on behalf of FIRE ¡ edited second editions of FIRE’s Guide to Free Speech on Campus and Guide to Due Process and Campus Justice Today’s Talk: Overview ¡ Explore recent FIRE cases involving student and faculty rights ¡ Discuss importance of protecting student and faculty rights ¡ Introduce First Amendment case law in the collegiate setting ¡ Take a closer look at campus policies concerning civility & bullying ¡ Questions & Answers! Disclaimer Jasper Quinn Creeley, 5 months old! Censorship of Students: SUNY Oswego Student Journalist’s Email to Opposing Hockey Coaches My name is Alex Myers, I work for the Office of Public Affairs at SUNY Oswego. I am currently writing a profile on Oswego State Hockey head coach Ed Gosek and was hoping to get a rival coaches view on Mr. Gosek. If you have time would you mind answering the following questions. 1. How do you find Mr. Gosek to coach against? 2. Have you had any interactions with Mr. Gosek off the ice? If so how did you find him? 3. What is your rivalry like between your school and Oswego State? Be as forthcoming as you like, what you say about Mr. Gosek does not have to be positive. One Coach’s Angry Response Coach’s Response: "[Gosek] is one of the best guys in college hockey. Your last line of saying your comments don't need to be positive is offensive." Student’s Reply: "simply letting you know that this piece I am writing is not a 'puff' piece about Mr. Gosek." Student Charged, Placed on Interim Suspension “Disruptive Behavior” 1) harassment or creating a hostile environment through discrimination, intimidation, ridicule, or insult toward any person; 2) acts of prejudice or bias targeted toward a person or group; 3) physical abuse, assault and/or battery; 4) threats toward or intimidation of any person, or intentionally or recklessly causing harm or reasonable apprehension of harm; 5) creation of a condition or situation that endangers mental or physical health; 6) conduct which inhibits the peace or safety of members of the College community; 7) conduct related to the use, possession, or distribution of alcohol or other drugs are unacceptable and subject to disciplinary action. Defamation? Threat? Harassment? Intimidation? No, no, no, and no. ¡ Defamation requires that the speaker make a knowingly false statement that is published and results in harm to its victim. When the victim is a public figure, plaintiff must prove publication with actual malice (i.e., reckless disregard to falsity). ¡ Harassment: discriminatory conduct that is "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). ¡ “True threats”: "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." ¡ Intimidation: “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." Virginia v. Black, 538 U.S. 343, 359-60 (2003). Charge Dropped ¡ FIRE wrote letter on October 26 ¡ Charge dropped October 29 ¡ Student forced to write apology ¡ Oswego takes negative media hit: 50,000 page views on Gawker, 1.6k likes on Facebook ¡ President “heartsick” Censorship of Students: University of Alaska – Fairbanks ¡ Student newspaper The Sun Star subjected to multiple investigations for publishing two articles ¡ Charges of “sexual harassment” and creating a “hostile environment” ¡ Both charges filed by offended professor UAF Sun Star Picture Harassment ¡ What’s the legal definition for peer-on- peer harassment in the educational context? ¡ Discriminatory conduct that is "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). Investigating The Sun Star ¡ Multiple rounds of review ¡ Outside attorney retained ¡ Months-long investigation: April 2013 to February 2014 ¡ Chilling effect on student speech ¡ After FIRE letter, investigations finally concluded — paper exonerated Former Sun Star Editor-in-Chief Lakeidra Chavis Censorship of Faculty: UW – Stout • University of Wisconsin Stout's police chief removed this poster with a picture of Firefly actor Nathan Fillion and a quotation from the show from outside the office door of Professor James Miller • Police officer stated that the poster was unacceptable because it “refer[red] to killing” and “can be interpreted as a threat by others” • Days later, the same officer removed another posting outside Miller's door Miller’s Rejoinder Censorship of Faculty: UW – Stout ¡ The university's threat assessment team was activated, and Miller's academic dean called him in to discuss the threat assessment team's "concerns” ¡ Firefly fans deluge administration with protest letters ¡ Chancellor Charles W. Sorensen and other administrators at first issued a statement defending its censorship… ¡ … but finally folded and announced that Stout would no longer censor the posters. Censorship of Faculty: Bergen Community College • Professor Francis Schmidt punished for posting picture of daughter wearing “Game of Thrones” shirt on his Google+ account • Summoned to a meeting to discuss “threatening” email • Head of security told Schmidt “fire” could be “a kind of proxy for AK-47s” • Suspended without pay pending a psychiatric evaluation • After he was reinstated, still had formal warning placed in his file • Threatened with termination if he made “disparaging” comments or acted in any way the college deemed “unbecoming” Censorship of Faculty: Bergen Community College ¡ After FIRE Legal Network members intervened, college settled case in late September 2014 ¡ College erased record of incident, acknowledged that its actions “may have lacked basis” and “potentially violated” Schmidt’s First Amendment rights. Cost of Silencing Speech ¡ Betrays ideals of higher education ¡ Teaches wrong lessons about life in democracy ¡ Negative reaction from students, faculty, alumni, donors, press ¡ Waste of time, energy, resources Why is free speech important? “[T]he opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course deny its truth; but they are not infallible. They have no authority to decide the question for all mankind, and exclude every other person from the means of judging. To refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility.” John Stuart Mill, On Liberty, 1859. Speech at Public Colleges The First Amendment applies in full on public college campuses. Supreme Court of the United States Sweezy v. New Hampshire 354 U.S. 234 (1957) ¡ May the Attorney General of New Hampshire prosecute a lecturer for refusal to answer questions about a lecture delivered at the state university? ¡ “The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation…” Paul Sweezy Keyishian v. Board of Regents, State Univ. of N.Y. 385 U.S. 589 (1967) ¡ New York statutes and administrative rules designed to prevent employment of “subversive” teachers and professors in state educational institutions and to dismiss them if found guilty of “treasonable or seditious” acts ¡ Unconstitutional for vagueness. ¡ “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Healy v. James 408 U.S. 169 (1972) ¡ Central Connecticut State College’s president had denied official status to a left-wing student group associated with violence on other campuses ¡ “[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’” Papish v. Board of Curators of University of Missouri 410 U.S. 667 (1973) ¡ “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” Speech at Private Colleges ¡ Private universities have a First Amendment freedom of assembly right to determine their own rules ¡ Most private universities promise their students extensive speech rights in school materials such as student handbooks, recruiting brochures, and codes of conduct.